CLAIM NO. E712328
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 26, 2005
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE STEPHEN SHARUM, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 1 represented by HONORABLE MELISSA CRINER, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by HONORABLE TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed, in part, reversed, in part.
OPINION AND ORDER
Respondent no. 1 appeals and the claimant cross appeals the decision of the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that he was entitled to additional medical treatment and a finding that the claimant failed to prove by a preponderance of the evidence that he was entitled to any additional permanent impairment in the form of wage loss disability benefits. Based upon our de novo review of the record, we affirm, in part, and reverse, in part. Specifically, we affirm the finding that the claimant was not entitled to additional permanent impairment in the form of wage loss disability benefits. However, we reverse the finding that the claimant was entitled to additional medical treatment. The claimant sustained an admittedly compensable injury on October 4, 1997. The claimant was injured when the scaffold he was standing on while painting collapsed and caused him to fall to the ground. The claimant sustained injuries to his right ankle and left knee. The claimant received extensive medical treatment and was assigned a permanent partial impairment equal to 5% to the body as a whole. All of the injuries and the permanent impairment were accepted and paid by the respondent carrier, Houston General.
On October 19, 2000, the claimant fell and sustained a laceration to his left knee. This injury was also accepted by the employer’s new insurance carrier, One Beacon. All medical benefits for the treatment of the claimant’s laceration were paid. One Beacon also paid for some additional medical treatment to the claimant’s knee and ankle from the prior injuries. During the time period between the claimant’s knee and ankle injuries and the laceration injury, the employer’s insurance carrier changed from Houston General to One Beacon Insurance.
In the present litigation, the claimant contended that he was entitled to additional medical treatment for his left knee and right ankle and wage loss disability benefits. The Administrative Law Judge awarded the claimant the additional medical treatment but found that the claimant failed to prove by a preponderance of the evidence that he was entitled to any wage loss disability benefits. The respondent appealed the decision of the Administrative Law Judge awarding additional medical treatment and the claimant appealed the Administrative Law Judge’s failure to award wage loss. After conducting a de novo review of the record, we find that the claimant has failed to prove by a preponderance of the evidence that he is entitled to additional medical treatment or that he is entitled to wage loss disability benefits. Accordingly, we affirm, in part, and reverse, in part, the decision of the Administrative Law Judge.
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. §11-9-508(a) (Repl. 2002). However, injured employees have the burden of proving by a preponderance of the evidence that the medical treatment is reasonably necessary for the treatment of the compensable injury. NormaBeatty v. Ben Pearson, Inc., Full Workers’ Compensation Commission Opinion filed February 17, 1989, (Claim No. D612291). When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, we must analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Workers’ Compensation Commission Opinion filed December 13, 1989 (Claim No. D512553). Also, the respondent is only responsible for medical services which are causally related to the compensable injury.
The claimant sustained compensable injuries to his right ankle and left knee after falling in October of 1997. Surgery was performed on both the ankle and the knee at that time. X-rays taken a few months later, on January 5, 1998, revealed:
AP and lateral views of the left knee are obtained and reveal hardware in place with no change in fracture alignment.
AP, lateral, and mortise views of the ankle are obtained. Hardware is in place with anatomic reduction and healed fracture.
Dr. Frankie Griffin, the claimant’s surgeon, noted the following in a report dated February 5, 1998:
BRIEF HISTORY: Mr. Driggers returns to clinic now four months status post open reduction internal fixation left tibial plateau fracture and right ankle pilon fracture. He has no complaints. He reports he is doing well. He denies any significant pain in his knee or his ankle.
PHYSICAL EXAMINATION: Left knee reveals full range of motion of the knee from full extension of 120 degrees of flexion. His knew joint is completely nontender to palpation at the joint line. His knee is stable to varus and valgus stress and anterior and posterior Drawer exam. This incision is well healed. Distally, he flexes and extends his toes. Capillary refill to his toes and foot is less than 2 seconds and his light touch sensation is intact.
Physical exam of the right ankle reveals his incision is well healed without erythema, exudates or tenderness. He dorsiflexes his ankle 30 degrees and plantar flexes 30 degrees without pain. His ankle is nontender to palpation other then some mild scar tenderness.
X-RAYS: Studies reveal near anatomic alignment of both fractures with no change.
The claimant was released as having reached maximum medical improvement by Dr. Griffin on February 4, 1999, and he noted that the claimant’s prognosis was “excellent.” In December of 2002, it was again noted by Dr. Griffin that claimant’s x-rays showed no changes, just degenerative changes; in fact, the claimant was doing “very well” and had “no complaints”:
BRIEF HISTORY: Mr. Driggers returns to the clinic today for follow up of his right ankle and his left knee. He reports that both are doing very well and his left knee. He reports that both are doing very well and he has no complaints. He reports only some swelling of both his left knee and right ankle with prolonged weightbearing.
PHYSICAL EXAMINATION: Physical examination today of the left knee reveals a range of motion from full extension to 120 degrees of flexion. The knee is stable to varus and valgus stress. Lachman exam is within normal limits. His incisions are well healed. Physical examination of the left ankle reveals a range of motion of dorisflexion 30 degrees, plantar flexion 30 degrees. The ankle is stable on anterior and posterior drawer exams. He has no bony tenderness about the ankle. The ligaments about the ankle are nontender. There is no swelling in his ankle or his knee today. His incisions about the ankle are well healed as well.
X-RAYS: X-rays of the right ankle show some early degenerative changes and are basically unchanged from this last x-rays about a year ago. X-rays of the left knee also show no obvious changes. Early degenerative changes.
The claimant confirmed, on cross-examination, that he had no complaints, that he was doing well, and that nothing changed in his examinations with Dr. Griffin:
Q. Okay. Do you recall going to Dr. Griffin in December of `02, and indicating to him that your knee and ankle were doing very well?
A. Yes.
Q. And that you had no complaints?
A. Yes.
Q. And as far as when you did go back to work, after you were released, you indicated earlier that you could not do any climbing on ladders. Is that right?
A. Yes.
Q. Was there plenty of work for you to do without having to climb on ladders?
A. Well, some.
Q. Would you say there was plenty?
A. Well, I don’t work forty hours. No.
Q. Would you have been able to work full time, had you wanted to?
A. Yes.
Q. How were your knee and ankle doing when you returned to work?
A. They swelled up quite a bit.
Q. Do you recall telling me in your deposition that you were doing good —
A. Yes.
Q. — when you went back to work?
A. Yes.
Q. And then you continued to see Dr. Griffin just for checkups. Right?
A. Yes.
Q. He didn’t do anything further, besides take x-rays?
A. X-rays and — yeah.
Q. And as far as you know, the x-rays didn’t show any new injuries, did they?
A. No.
The claimant went on to testify about how very minor and rare his complaints were, and he admitted that he really had no trouble doing regular activities:
Q. And as far as the problems you’re having now, what would you say they are, as far as the left — or the right ankle?
A. Just swelling up every now and then.
Q. How often is that?
A. Oh, probably once a month.
Q. How many times a month?
A. Probably once.
Q. How many times a month?
A. Probably once.
Q. Once a month? And how long can you stand and walk on them before it starts bothering you?
A. About five, six hours.
Q. Okay. If you told me in your deposition seven, is that correct?
A. Yes.
Q. What about the knee?
A. Same way.
Q. Swells about once a month?
A. Yes.
Q. And you can walk on it for about seven hours before you have trouble?
A. Yes.
Q. Do you have any problems bending or stooping?
A. No.
Q. And as the — far — as far as the work you do now, I believe you told me in your deposition that you can roll the walls?
A. Yes.
Q. And you can tell your brother or somebody else working for you to do the ceiling trim?
A. Yes.
Q. Is there anything you can’t do, as far as general work around the house?
A. No.
Q. Any problems going to the grocery store, doing yard work, anything like that?
A. No.
Q. Has Dr. Griffin ever told you that you can’t go to work full time?
A. No.
The claimant could admittedly do anything he wanted to do and could work full time if he were so inclined. However, he wants to continue seeking medical treatment for no reason, other than to attempt to toll the statute of limitations. The claimant’s prognosis is excellent and has been for quite some time now. Therefore, in our opinion, further treatment is not reasonable nor necessary.
The Arkansas Workers’ Compensation Law provides that when an injured worker’s disability condition becomes stable and no further treatment will improve that condition, the disability is deemed permanent. In order to be entitled to any wage loss disability in excess of permanent physical impairment, the claimant must first prove by a preponderance of the evidence that he sustained permanent physical impairment as a result of the compensable injury. Needham v. Harvest Foods, 64 Ark. App. 141, 987 S.W.2d 278, (1998). If the employee is totally incapacitated from earning a livelihood at that time, he is entitled to compensation for permanent and total disability. See, Minor v. Poinsett LumberManufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).
The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Emerson Electricv. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001). To be entitled to any wage-loss disability benefit in excess of permanent physical impairment, a claimant must first prove, by a preponderance of the evidence, that he or she sustained permanent physical impairment as a result of a compensable injury. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 727 (2000). The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, such as the claimant’s age, education, and work experience. Emerson Electric v. Gaston, supra.
In determining wage loss disability, the Commission may take into consideration the workers’ age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the workers’ future earning power. Such other matters are motivation, post-injury income, credibility, demeanor, and a multitude of other factors. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); City ofFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). Curry v.Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). A claimant’s lack of interest in pursuing employment with her employer and negative attitude in looking for work are impediments to our full assessment of wage loss.
However, so long as an employee, subsequent to his injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his average weekly wage at the time of the accident, he or she shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence. Ark. Code Ann. § 11-9-522(b)(2) (Repl. 2002). The employer or its workers’ compensation insurance carrier has the burden of proving the employee’s employment, or the employee’s receipt of a bona fide offer to be employed, at wages equal to or greater than his average weekly wage at the time of the accident. Ark. Code Ann. § 11-9-522(c)(1). In considering factors that may affect an employee’s future earning capacity, the Commission considers the claimant’s motivation to return to work, since a lack of interest or a negative attitude impedes the assessment of the claimant’s loss of earning capacity. Emerson Electric v. Gaston, supra.
The Commission may use its own superior knowledge of industrial demands, limitations, and requirements in conjunction with the evidence to determine wage-loss disability. Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982).
Arkansas law has long held that injuries which fall within the scheduled injury category are not entitled to disability over and above the permanent impairment rating for these scheduled injuries. The claimant has sustained injuries which are scheduled. Therefore, he is not entitled to any wage loss disability over and above the permanent impairment rating of 5% to the whole body which was accepted and paid by Houston General.
Therefore, after conducting a de novo review of the record, we find that decision of the Administrative Law Judge should be affirmed, in part, and reversed, in part. Specifically, we reverse the finding of the Administrative Law Judge finding that the claimant was entitled to additional medical treatment. However, we affirm the decision of the Administrative Law Judge finding that the claimant was not entitled to any wage loss disability benefits.
IT IS SO ORDERED.
________________________________ OLAN W. REEVES, Chairman
________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Turner concurs, in part, and dissents, in part.
CONCURRING AND DISSENTING OPINION SHELBY W. TURNER, COMMISSIONER.
The Majority is holding that the claimant is not entitled to wage loss disability benefits or further medical treatment. Since this claim involved a scheduled injury, I concur in the denial of wage loss disability benefits. However, I disagree with the Majority’s decision foreclosing the claimant from any future medical treatment. For that reason, I respectfully dissent from that portion of the Majority’s Opinion.
One of the paramount purposes of the Arkansas Workers’ Compensation Act is to pay all reasonable and necessary medical benefits to employees suffering job related injuries. In the present claim, there is no dispute that this claimant suffered such an injury. There is also no dispute that he is entitled to all appropriate medical and disability benefits based upon that injury. However, the Majority’s opinion not only denies the claimant medical treatment to maintain his condition, but effectively precludes him from ever obtaining any additional medical treatment in the future. I believe that this holding is contrary to the express provisions of the Workers’ Compensation Act and deprives an injured worker who suffered a job related injury one of his most basic rights.
The only medical treatment the claimant is presently seeking is the regular checkup which his treating physician has directed him to seek. In numerous past cases, most notably, Plant v. Tyson Foods, 319 Ark. 126, 890 S W.2d 253 (1994), we have held that this type of treatment is reasonable and necessary. However, we are departing from such established precedent in this case, and are holding that such routine, precautionary medical treatment is not allowed in claimants in workers’ compensation cases. I believe that this opinion is unnecessarily harsh and is not in accordance with the stated purposes of the Workers’ Compensation Act.
For that reason, I respectfully dissent from the Majority’s Opinion regarding the claimant’s entitlement to additional medical treatment.
________________________________ SHELBY W. TURNER, COMMISSIONER
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